The plaintiff’s right to recover depends entirely upon the validity of his patent. If that is invalid, the judgment of the Court below must be reversed. The evidence in this cause is substantially the same as it was in the case of the United States v. Chapman, reported in 5 Saw. 528, in which the validity of the patent upon which the plaintiff bases his right to recover in this case, was involved. The Court in that case held it to be invalid. The evidence in this case as in that, shows that the application of the plaintiff to locate Sioux half-breed scrip which had not been issued to him was not accompanied by a power of attorney from the person to whom it had been issued. That the patent was issued to the plaintiff while a contest was pending in and undetermined by the United States Land Office, between him and the defendants, who are purchasers from the State of the land in controversy. That at the time of plaintiff’s attempted location of the Sioux half-breed scrip upon the land, it was occupied by the defendants under a claim of title from this State, and that they had valuable improvements upon it. That the State selected this land as lieu land on the 15th day of January, 1868, and that at that time there was no pre-emption or other valid claim thereto.
In view of these facts, the findings and decision of the Court below can not he sustained.
Judgment and order denying the motion for a new trial reversed.